Corporate report

Office of the Public Guardian corporate governance framework

Updated 27 September 2022

Applies to England and Wales

© Crown copyright 2022

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1. Introduction

Status of this document

[1.1] The role of the Public Guardian for England and Wales (‘the Public Guardian’) was created under the provisions of the Mental Capacity Act 2005 (MCA) on 1 October 2007.

[1.2] The Office of the Public Guardian (OPG) is an executive agency of the Ministry of Justice (‘the department’), created in 2007 to support the Public Guardian in the discharge of his or her statutory functions. The Public Guardian is also Chief Executive of OPG (‘Chief Executive’) and chair of the OPG board, and is Accounting Officer (AO) for OPG.

[1.3] This framework document sets out the arrangements for the governance, accountability, financing, staffing and operation of OPG, agreed between the Lord Chancellor and Secretary of State for Justice and the Chief Executive and approved by the Chief Secretary to the Treasury.

[1.4] This framework document will continue to be reviewed formally every three years under arrangements agreed between the Lord Chancellor and Secretary of State for Justice and the Chief Executive, but may be reviewed at any other time if they so wish.

[1.5] The department will manage the provision of amendments, which will be agreed with OPG. Major changes or significant departures from the existing document will require the approval of the Lord Chancellor and Secretary of State for Justice and, as required, HM Treasury (the Treasury).

[1.6] Any departure from the provision of the framework document must be agreed in writing on a case-by-case basis between the Permanent Secretary and Chief Executive, if appropriate, with the approval of the Lord Chancellor and Secretary of State for Justice or delegate, and the relevant Treasury minister.

[1.7] Any questions concerning the interpretation of this framework document will be resolved by agreement between the Permanent Secretary and the Chief Executive.

[1.8] Copies of the document and any subsequent amendments have been placed in the Libraries of both Houses of Parliament and will be available online.

2. Aims and objectives

[2.1] OPG’s remit is to support the Public Guardian in the delivery of their statutory functions under the MCA. It supports and enables people to plan ahead to prepare for their health and finances to be looked after, should they lose capacity in the future, and safeguard the interests of people who may lack the mental capacity to make certain decisions for themselves. It also supports guardians appointed by the High Court to manage the affairs of people who are defined as missing under the Guardianship (Missing Persons) Act 2017. The statutory safeguarding function is prescribed as the supervision of deputies appointed by the Court of Protection and the investigation of representations made about the decision making of registered attorneys, deputies and guardians. OPG plays an important role in raising public awareness of the MCA.

[2.2] OPG’s purpose and objectives, as agreed by the Lord Chancellor and Secretary of State for Justice, are set out in OPG’s business plan.

3. Governance and responsibilities

[3.1] The Public Guardian is a statutory office holder appointed by the Lord Chancellor and Secretary of State for Justice under section 57 of the MCA. This statutory role is combined with the administrative role of the Chief Executive of OPG as an executive agency of the department and AO for the agency.

Role of the Public Guardian

[3.2] The Public Guardian’s statutory duty and role covers regulation, registration, monitoring and compliance in respect of OPG’s core functions to:

  • validate and register lasting powers of attorney (LPAs) and enduring powers of attorney (EPAs)

  • supervise deputies appointed by the Court of Protection

  • supervise guardians appointed by the High Court

  • maintain the registers of deputies, guardians, LPAs and EPAs, and respond to requests to search the registers

  • investigate complaints, or allegations of abuse, made against deputies, guardians or attorneys acting under registered powers

Departmental responsibilities to the agency

Ministerial responsibility

[3.3] The Lord Chancellor and Secretary of State for Justice will account for OPG’s business in Parliament. The responsible minister’s responsibilities include determining the policy and resources framework within which OPG should operate and allocating resources for meeting OPG’s expenditure and securing Parliamentary approval. The responsible minister will approve OPG’s strategic objectives.

Departmental Permanent Secretary and Principal Accounting Officer

[3.4] The Permanent Secretary is the department’s Principal Accounting Officer (PAO), whose responsibilities are set out in chapter 3 of Managing Public Money issued by HM Treasury.

[3.5] The PAO is accountable to Parliament for the resources allocated to the department, including any budget for OPG.

[3.6] The Permanent Secretary advises the Lord Chancellor and Secretary of State for Justice on how well OPG is performing.

[3.7] The Permanent Secretary’s responsibilities include:

  • endorsing OPG’s business plans before they are submitted to the Lord Chancellor and Secretary of State for Justice
  • advising ministers on steering OPG’s activities to make sure they effectively support the delivery of departmental objectives
  • ensuring OPG conforms to departmental policy and has the delegations and authorities necessary for effective delivery
  • ensuring arrangements are in place to monitor OPG’s activities and address any significant problems in OPG
  • the Permanent Secretary of the department will nominate a Director General from time to time to be the departmental sponsor of OPG

[3.8] The nominated Director General will, unless other arrangements have been agreed, meet monthly with the Chief Executive of OPG. The Chief Executive will additionally be a member of that Director General’s board which meets monthly. OPG and the department will also hold regular performance review meetings to discuss performance and current issues.

Responsibilities of the OPG Chief Executive

[3.9] The Public Guardian is responsible to the Lord Chancellor and Secretary of State for Justice for the effective operation of the agency.

[3.10] The Public Guardian, as Chief Executive, is designated as OPG AO by the PAO of the department, with responsibilities as set out in chapter 3 of Managing Public Money, and is accountable to the PAO and to Parliament for those responsibilities, with responsibility for signing the agency’s accounts and for transmitting them to the Comptroller and Auditor General (C&AG).

[3.11] The OPG Chief Executive will, unless other arrangements have been agreed, meet with the responsible minister at least once a year.

[3.12] As AO for OPG, the Chief Executive is personally responsible for safeguarding the public funds which s/he controls; for ensuring propriety, regularity, value for money and feasibility in the handling of those public funds; and for the day-to-day operations and management of OPG.

[3.13] The AO’s responsibilities for the propriety and regularity of the public finances for which he or she is answerable, for keeping proper records and for safeguarding the agency’s assets, are set out in chapter 3 of Managing Public Money.

[3.14] Where OPG has decided to delegate activities within its remit to external providers, whether they be public sector or private providers, the Chief Executive shall make sure that such delegation is subject to a robust governance regime, evidenced in a statement of accountability.

[3.15] In providing the above, the Chief Executive shall make sure that any such regime is supported by a process of regular review and monitoring, to make sure that governance arrangements are current and fit for purpose.

Delegation of duties

[3.16] The Chief Executive may delegate the day-to-day administration of his/her Accounting Office responsibilities to other employees within OPG and/or other public or private organisations. However, he/she shall not assign absolutely to any other person any of the responsibilities set out in this document.

Responsibilities for accounting to Parliament

[3.17] As AO, the Chief Executive’s responsibilities to Parliament include:

  • signing the accounts and ensuring they are prepared according to the requirements set out in this document
  • signing a statement of AO’s responsibilities and a governance statement for inclusion in the annual report and accounts
  • ensuring that effective procedures for handling complaints about OPG are established and made widely known within the organisation
  • acting in accordance with the terms of this document, Managing Public Money and other instructions and guidance issued from time to time by the department, the Treasury and the Cabinet Office
  • giving evidence, normally with the PAO, when summoned before the Public Accounts Committee on OPG’s stewardship of public funds

Responsibilities to the department

[3.18] The Chief Executive’s particular responsibilities include informing and agreeing with the department:

  • progress in helping to achieve its policy objectives and demonstrating how resources are being used to achieve those objectives

  • making sure that recommendations addressed to OPG in reports from the Public Accounts Committee (PAC) or National Audit Office (NAO), and, separately, any recommendations made to OPG in management letters attached to the audit completion report from its external auditors, are responded to, addressed and acted upon in a timely manner to make sure that they are cleared promptly – the department will work with OPG to support it in this task and coordinate any responses to Treasury

[3.19] If any responsibilities are delegated outside OPG to another public or private organisation, they will be so delegated under a monitored and documented system of governance that complies with the principles set out in the departmental accountability system statement, which can be found in the financial guide.

[3.20] OPG will share with the departmental sponsor monthly information as to its operational performance and finances and have regular performance review meetings.

The OPG board

[3.21] The OPG board:

  • monitors performance and manages risks in OPG
  • provides advice to make sure OPG delivers high quality and cost-effective services
  • works to maintain strong working relationships with our partner organisations
  • approves the corporate governance framework PDF and controls and monitors it quarterly
  • contributes to the development of, and approves, the annual business plan for OPG

Board appointments and composition

[3.22] The Public Guardian is appointed by the Lord Chancellor and Secretary of State for Justice and, as Chief Executive of OPG, will continue to perform the role of chair of the OPG board and, when required, exercise a casting vote.

[3.23] In addition to the chair, the OPG board will be made up of:

  • 3 independent non-executive members to provide support and feedback
  • no fewer than 2 OPG staff (from senior management) invited by the chair
  • a qualified financial representative to support the chair in his accounting officer responsibilities
  • non-board members from the department and OPG who the chair will invite on occasion

[3.24] OPG board members will be appointed by the Public Guardian with the approval of the Permanent Secretary. The non-executive board members will be appointed by the Public Guardian following an open and transparent process run in accordance with the principles of the Cabinet Office governance code on public appointments. The Chief Executive will be a member, but not the chair, of any recruitment panel for non-executive board members.

[3.25] OPG’s strategic direction will be determined by the board, which exists to protect and enhance the reputation of OPG. It does so by steering and overseeing the direction of OPG. Providing strategic leadership on the broad direction for OPG, the board will be proactive in supporting the delivery of the aims and objectives agreed within OPG’s business plan.

Individual board member responsibilities

[3.26] Individual board members should:

  • comply at all times with the board members’ terms of reference and with the rules relating to the use of public funds and to conflicts of interest
  • in the case of non-executive board members, comply with the principles set out in the Cabinet Office’s code of conduct
  • act in good faith and in the best interests of OPG

Sustainable development

[3.27] The government wants to mainstream sustainable development so that it is central to policy making and delivery, estate management and the purchasing of goods and services. OPG will comply with policies and guidance issued by the department, the Treasury or other relevant bodies in relation to sustainable development, contributing to the government’s vision for mainstreaming sustainable development and to the department’s results under Greening Government Commitments operations and procurement.

4. Accountability to Parliament

Parliamentary committees

[4.1] The Chief Executive and the Permanent Secretary or his/her delegate may be asked to appear before the PAC concerning their respective AO responsibilities.

[4.2] Invitations received from other Parliamentary committees relating to OPG will be considered by the Chief Executive who will consult and advise the Lord Chancellor and Secretary of State for Justice as appropriate.

Ombudsman

[4.3] The administrative work of OPG is subject to the jurisdiction of the Parliamentary and Health Service Ombudsman (PHSO).

[4.4] The Permanent Secretary is the Principal Officer of the department for the purposes of PHSO referrals, but will normally delegate responsibility for handling any matters concerning OPG to the Chief Executive. The Chief Executive should make sure appropriate learning and feedback mechanisms are in place and that difficult or contentious cases are brought to the attention of the department at an appropriate stage.

Parliamentary questions and correspondence

[4.5] The Chief Executive will advise ministers as required in respect of Parliamentary questions and correspondence addressed to ministers regarding OPG.

[4.6] If the question or correspondence relates to matters solely within the responsibility of the Chief Executive, it will be referred to the Chief Executive.

[4.7] The Chief Executive (or other OPG staff in his absence) may also respond directly to correspondence addressed to OPG from an MP or Peer on matters concerning operational delivery of OPG’s services.

5. Financial planning and reporting

The department’s requirements

[5.1] Unless otherwise agreed by the department and, as necessary, the Treasury, OPG shall follow the principles, rules, guidance and advice in Managing Public Money, referring any difficulties or potential bids for exceptions to MOJ group finance in the first instance.

[5.2] In particular, OPG shall comply with the requirements placed on the department by the Treasury and Cabinet Office spending controls as though they were addressed directly to it, unless there is an overriding policy reason for not doing so.

Financial arrangements

[5.3] OPG is funded by the department, from its Parliamentary supply, and by income derived from fees and charges from external customers.

[5.4] OPG is required, in accordance with Managing Public Money, to disclose results for the areas of its activities undertaken throughout the financial year, where fees and charges were made.

[5.5] OPG will prepare an annual budget, submitting this to the relevant departmental committee for agreement and subject to approval by the PAO and departmental board. Once agreed it forms one section of the department’s supply estimate as presented to Parliament. OPG is subject to both gross and net running cost controls.

[5.6] OPG is also expected to participate in the in-year forecasting exercises conducted by MOJ group finance. This will require OPG to provide updated losses and cash-flow forecasts as required by the department’s finance and planning directorate for these exercises.

[5.7] OPG is responsible for assessing its medium and long-term resource requirements and the scale and profile of fee income to inform spending review discussions and public spending plans. The Chief Executive of OPG otherwise has full financial authority within the budget allocated, provided that relevant expenditure is undertaken in accordance with the business plan and financial transaction limits.

[5.8] As an executive agency of the department, OPG is part of the department’s VAT group and is eligible for refunds of VAT in the course of making taxable business supplies and under section 41(3) of the Value Added Tax Act 1994.

[5.9] OPG is exempt from Corporation Tax.

Budgeting procedures

[5.10] Each year, in light of decisions by the department on the updated annual business plan, the department will send to OPG a formal statement of the annual budgetary provision allocated by the department in light of competing priorities across the department and of any forecast income approved by the department. This budget allocation will set out OPG’s net expenditure limits within:

  • resource departmental expenditure limits (DEL) (split by administration and programme spend)
  • capital DEL
  • resource annually managed expenditure (AME) and (if relevant) capital AME
  • cash: a limit will also be set on cash spend
  • a statement of any planned change in policies affecting OPG

[5.11] The approved annual business plan will take account both of any forecast receipts, and will include a budget of estimated payments and receipts together with a profile of expected expenditure and of any departmental funding and/or other income over the year. These elements form part of the approved business plan for the year in question.

[5.12] The departmental estimate will include the resource and capital provision of OPG within its voted budgetary limits. Once the budget has been approved by the department, OPG shall have authority to incur expenditure approved in the budget without further reference to the department, on the following conditions:

  • OPG shall comply with budgetary delegations and financial transaction limits – these shall not be altered without the prior agreement of the department
  • OPG shall comply with Managing Public Money regarding novel or contentious payments or repercussive proposals
  • inclusion of any planned and approved expenditure in the budget shall not remove the need to seek formal departmental approval where any proposed expenditure is outside the delegated limits or is for new schemes not previously agreed
  • OPG shall provide the department with such information about its operations, performance, individual projects or other expenditure as the department may reasonably require – OPG will submit financial reports, as agreed with the department, on a monthly basis

Capital

[5.13] If any capital expenditure is needed, this must be agreed in advance and be included as part of the department’s capital allocation and delegated to OPG as part of its budget allocation. The approval of the department’s finance management committee will be sought for any requests for capital spend above OPG’s delegation limit based on a submitted business case for this spend.

Cash holding

[5.14] OPG will use the services of the government banking service (GBS). No more than one month’s cash should be held in reserve or be available at year end. The department will carry out a check of OPG’s cash holding at the end of each financial year.

Commercial and contract management

[5.15] OPG shall:

  • make sure its procurement policies are consistent with the Cabinet Office (government procurement) and departmental procurement guidelines and policies
  • make sure spend in government procurement central categories is directed through government procurement mandated contracts with Cabinet Office
  • comply with all legal obligations, including those under the European community’s procurement rules and other international agreements
  • make sure that its staff are fully aware of relevant procurement policies and guidance and, in particular, relevant delegations and financial transaction limits
  • put in place a procurement framework which sets out its procurement structure, organisation, processes and control mechanisms – the department will provide OPG with a statement of delegated authority for general procurement
  • provide reports of spend against central contracts and other spend metrics as requested by departmental procurement for ongoing reporting to the Cabinet Office
  • periodically and wherever practicable undertake benchmarking against best practice elsewhere
  • alternatively, utilise the procurement services and/or contracts of the department in compliance with the above

Delegated thresholds

[5.16] The PAO of the department will delegate responsibility for all financial matters in writing to the Chief Executive. OPG will operate within the financial transaction limits and controls confirmed in the written delegations, and authorities to spend which will be reviewed at least annually. OPG’s delegated thresholds and financial transaction limits are set out in the prevailing budget variation letter and its annexes. OPG shall obtain the department’s prior written approval before exceeding or varying any of its delegations or financial transaction limits.

Risk

[5.17] OPG will maintain a risk management process in accordance with the guidance in the Treasury’s Managing Public Money and Management of risk: principles and concepts and other official guidance that may be issued from time to time, and consistent with the department’s risk management policy, escalating risks as necessary.

[5.18] OPG will maintain contingency and business continuity plans and will review and test these on a regular basis.

Business plan, annual report and accounts

[5.19] Under section 7(2) of the Government Resources and Accounts Act 2000, the Treasury has directed the agency to prepare a statement of accounts for each financial year in the form, and on the basis set out in their accounts direction.

[5.20] OPG must prepare and publish an annual report of its activities together with its audited accounts after the end of each financial year, to a timetable agreed with the department. OPG shall provide the departmental sponsor and finance and planning directorate teams with its finalised (audited) accounts in line with the timetable set out in departmental finance and commercial instructions (FCI) on the production of consolidated departmental accounts.

[5.21] OPG accounts will be consolidated into the departmental group accounts and its accounts will be signed off by the OPG audit committee.

[5.22] The Lord Chancellor and Secretary of State for Justice will lay the OPG annual report and accounts in the House of Commons and make it available online. The accounts should be prepared in accordance with the relevant statutes and specific accounts direction issued by the department as well as the government financial reporting manual.

[5.23] OPG plans will be set within the context of the wider MOJ strategy and the transparency framework to deliver objectives and outcomes set by the Lord Chancellor and Secretary of State for Justice. Reporting against plans will be consistent with reporting in the rest of the department.

[5.24] The Chief Executive is responsible for the development of OPG’s long term corporate planning and for ensuring that OPG has integrated planning and performance arrangements in place.

[5.25] Within the strategic direction set by corporate planning, the detailed activities for OPG will be published in an annual business plan. The plan will include:

  • clear links with MOJ strategy
  • the priorities and work programme for the year as derived from OPG’s plans
  • key objectives and associated key performance targets against which the department will assess OPG performance
  • the operating assumptions and budget on which the plan is based

[5.26] The business plan will be approved by the Lord Chancellor and Secretary of State for Justice following endorsement by the Permanent Secretary. The timetable for this will be in line with departmental timeframe requirements.

Internal audit

[5.27] OPG’s AO is responsible for making arrangements for the provision of internal audit services for OPG, in accordance with public sector internal audit standards and best practice set by HM Treasury.

[5.28] The department’s audit committee, which operates in accordance with the standards and best practice set by the Treasury, will support the OPG AO and advise on OPG’s governance, risk and control systems.

OPG audit committee

[5.29] OPG will appoint an audit committee, in accordance with standards and best practice set by the Treasury, to support the Chief Executive as AO in the discharge of his or her responsibilities for governance, risk management, control and assurance.

[5.30] The committee will be chaired by a non-executive member who will make sure that effective arrangements for communication with the department’s audit committee are maintained.

External audit

[5.31] The C&AG audits OPG expenditure and income, assets and liabilities, examines its regularity and propriety and certifies reports on OPG’s statement of accounts.

[5.32] The C&AG sends copies of all management letters and correspondence relating to those letters to the Chief Executive, who draws issues of significance to the attention of the OPG board. The board will escalate issues of particular importance to the department.

[5.33] The C&AG has access to OPG books and records under the National Audit Act 1983, for the purposes of carrying out examinations into the economy, efficiency and effectiveness with which OPG has used its resources and discharged its functions.

6. Organisation management

OPG staff

[6.1] The department will set terms and conditions (including all issues to do with pay and remuneration) of employment and procedures which will apply to OPG civil servants, other than senior civil servant grades which will be determined by the Cabinet Office. The department’s terms and conditions are compliant with Cabinet Office controls.

[6.2] The Chief Executive will make sure that OPG will operate in accordance with departmental corporate policies and processes that provide OPG with an engaged, diverse and competent workforce and that allows for OPG to meet all relevant statutory obligations.

[6.3] The Chief Executive is responsible for ensuring that OPG complies with the department’s collective engagement framework in relation to consultation with the trades union side.

[6.4] Staff shall comply with the restrictions on disclosure of information set out in OPG’s information assurance policy.

Corporate service provision and functional leadership

[6.5] A number of support functions will be provided by the department to OPG either as a shared service or through a model of functional leadership where the requirements of the department and OPG are in alignment. These functions may include:

  • strategic finance
  • communications
  • information and communications technology
  • human resources
  • commercial and contract management
  • estates and facilities
  • information assurance and data incident handling (for significant incidents involving personal data)
  • legal services

[6.6] Some of these support functions are provided by OPG, others are provided by the department.

[6.7] The department and OPG will discuss and agree provision and management of the services as appropriate. In doing so, the functions of OPG and the need for the services to be fit for purpose and cost effective will be taken into account.

Complaints and litigation

[6.8] Where complaints are received about OPG or matters within OPG’s remit, the department will refer these to OPG to deal with. The department retains the authority, however, to manage a complaints process directly in the most serious cases.

[6.9] As set out in section 4, the Public Guardian will make sure that OPG operates in accordance with a published complaints procedure which is clear and accessible to all users.

[6.10] OPG is subject to the jurisdiction of the PHSO as a route of escalation for complaints made against OPG.

[6.11] OPG will manage any litigation arising from its operational activities, involving departmental lawyers and other officials at the earliest appropriate stage.

Access

[6.12] The department will have a right of access to all OPG’s records and personnel as required to discharge the obligations of the department and the PAO and for any other purpose, including, for example, sponsorship audits and operational investigations.

Security and information assurance

[6.13] OPG is required to comply with government standards for the management of security and information risk as set out in the government information standards (and where OPG is covered by the security policy framework, it complies with its requirements) where they exchange information with the department or other departments in carrying out a business role, or in delivering a service on behalf of government. If requested by the department, information relating to any significant weakness in meeting these standards will be provided for inclusion in the department’s annual security risk management overview return to the Cabinet Office.

Occupational health and safety

[6.14] OPG should make sure that appropriate occupational health and safety policies and documentation are in place and applied and are compliant with the relevant legislation and departmental corporate health and safety policy.

Freedom of information and data protection

[6.15] OPG will carry out its obligations under the Freedom of Information Act (FOI), the Data Protection Act (DPA) and the Environmental Information Regulations, including ensuring requests are answered in a timely way, are compliant with the relevant legislation and, where applicable, are provided in line with agreed department internal processes for request handling.

[6.16] Additionally, OPG will maintain a central monitoring record of FOI and DPA requests received and dealt with. The department may require this information for inclusion in the departmental statistics.

Review of OPG’s status

[6.17] The department retains the right to review the status of OPG as appropriate.

[6.18] The department shall put in place arrangements to make sure the orderly winding up of OPG where this results from a review or in other circumstances.

This framework agreement was signed on the 29 March 2018.

Permanent Secretary, Ministry of Justice

Public Guardian for England and Wales

Annex 1: Compliance with government-wide corporate guidance and instructions

OPG shall comply with the rules and instructions contained in the following documents:

OPG shall refer to the following documents for general guidance:

In addition, OPG will comply with the department’s internal policy in the following areas:

  • finance policy
  • HR
  • procurement
  • risk management
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